This Article is Banned by the CUNY Policy on Expressive Conduct

By Stefanie A. Jones and Dominique Nisperos.

For at least the past eight months, the CUNY Board of Trustees has been considering a university-wide policy prohibiting and policing what is alternately called “expressive conduct” or “expressive activity.” The proposed changes would fundamentally curtail the ability of students and faculty to disseminate information, gather in shared CUNY spaces, engage in peaceful protest, and participate meaningfully in their campus life.

The first version, dated 27 July 2013 and entitled “The City University of New York Policy on Expressive Activity,” was circulated to the University Faculty Senate and its committees at the end of October 2013, and has since generated significant dissent. A petition written by a group of CUNY students and faculty has generated well over a thousand signatures (to see it, visit: https://www.change.org/petitions/the-cuny-board-of-trustees-andcuny-college-administrators-dismiss-the-proposed-cunypolicy-on-expressive-activity). The document’s agenda is revealed immediately; it begins with the premise that “freedom of expression and assembly . . . are subject to the need to maintain safety and order” (Draft 1, article 1.1). It also immediately asserts that, “expressive conduct must be carried out so as to ensure . . . the protection of property, and the continuity of the University’s . . . business operations” (Draft 2, article 1.1; unless otherwise noted, quotations refer to this more recent draft). The document then expands on the ways in which freedom of expression and assembly should be specifically curtailed.

For those unfamiliar with the document, the Draft CUNY Policy on Expressive Conduct:

  • Grants CUNY Central and local CUNY campuses the right to decide “time, place and manner restrictions on expressive activities” (1.2).
  • Prohibits CUNY employees, including faculty and staff, from participating in anything CUNY might consider a “demonstration” “at times when they are scheduled to perform instructional or other assigned work responsibilities,” (2.2) This clause is an unprecedented expansion of the authority of CUNY central and local administrators into the course content and classroom conversation, and is thus a threat to all faculty.
  • Limits expression to designated places and times (2.1). These designated areas serve as a “free speech pen.” In addition, article 2.2 prohibits expressive activity within any University facilities unless a particular campus makes an exception.
  • Directly prohibits “occupying” a University property or facility (3.3).
  • The first draft of this proposal requires notice of a demonstration or expressive activity to be given to the building’s security personnel, which notice must include “location, date and time” as well as expected participants. After the receipt of this notification CUNY is permitted to apply “time, place and manner restrictions” (draft 1, article 2.1), including changing the date, location, and/or time of the expression. Although this isn’t specifically granted in the second draft, notice is still required and administrative or police interference with demonstration is not explicitly prohibited.
  • Directly prohibits any action that “threatens to disrupt University functions or operations,” or “threaten[s] to destroy University property or other public or private property” without any indication of who decides what activity is considered threatening (3.2).
  • Directly prohibits standing in front of doorways to or from “University property or facilities” (3.2).
  • The first draft directly prohibited “shouting” and “using amplified sound.” The second draft still prohibits using unacceptable “amplified sound” or “making loud noise” (3.3). Students who violate these restrictions are subject to disciplinary action like expulsion, termination of employment, or even referral to “external law enforcement authorities.” (3.4).
  • Permits the President and campus security to terminate demonstrations after only one warning, or no warning if the demonstration is considered a “threat,” and authorize police intervention (4.2 and 4.3).
  • Limits tabling and the distribution of leaflets or other expressive material (5.1 and 5.2).

These limitations and the means of carrying them out comprise the majority of content of the document. The draft policy includes only information on how CUNY seeks to regulate and punish its students, faculty, and staff, with no mention of how the university will protect free speech, or prevent brutality and abuses of power by the administration or public safety officers. Limiting opposition to the policies and practices of the university is the goal of, and the exact problem with, the CUNY Policy on Expressive Activities/Conduct. Any purported concerns about campus safety or freedom of expression are already decided at the campus level, or within already existing University policies.

This move by the City University of New York is especially wrong-headed given other movements across New York City to undo draconian policing policies. With stop-and-frisk in the news and on Mayor de Blasio’s cutting block, as well as the rising number of murders of trans* New Yorkers, it is now common knowledge that the disproportionate policing of young people of color and trans* and queer youth is an atrocity of justice right now, right here in our city. And who is the City University of New York meant to serve more than the people of New York? While increased security against expression might make certain older White male elites at 42nd Street feel more comfortable, that comfort is one-sided. It comes at great cost to those most marginalized among the CUNY community and New York City.

Such a policy not only legitimizes the continued use of surveillance and force against the very people that CUNY is supposed to be working for, it actively criminalizes activity that discomfits the CUNY elite. The CUNY Policy on Expressive Conduct cannot be “non-discriminatory” (1.2) because it produces — as well as reproduces — class and race hierarchies within the walls of our schools, and it must not be tolerated. For example, CUNY administrators are permitted to conduct their expressive activity, even at the expense of others conducting their scholarship business (under articles 4.2 and 4.3, the president is permitted to use campus security and the NYPD to halt what is perceived as a threat), while students and faculty (much more likely to be working class and people of color) are instead subjected to severe limitations by this policy. In addition to reifying material differences between (particularly White, wealthy, male) CUNY administrators and those students and faculty (particularly working-class students and students of color) who serve as lesser citizens, implementation of the policy depends on an idea of who is “threatening,” disruptive, and who has the right to use CUNY’s space. In practice, the affective impressions of threat, disruption, and entitlement are already classed and racialized. Disproportionately so for working-class folks, queer and trans* folks, and folks of color, freedom of expression is regularly under attack because of institutionalized stereotypes that represent these demographics as threatening and disruptive. A CUNY-wide policy on expressive activities should work to support and expand the freedom of expression for oppressed groups, not attempt to counter that freedom in order to defend the University’s “business operations.” These are class, race, and gender relations disguised as “legitimate interests” (1.2).

In addition to these concerns, the Professional Staff Congress’s resolution in opposition to the policy raises several excellent points. In a recent resolution (http://www.psc-cuny.org/support-freedomdissent-and-assembly), the PSC concludes that “the draft policy (and its successor draft), if implemented, would have an impact on terms and conditions of employment and a dramatic impact on the intellectual, political and moral life of the University.” The PSC resolution also provides a brief history of CUNY’s violations of civil rights, violations rooted in the suppression of dissent. One noteworthy example is the 1940-42 Rapp-Coudert Committee which, “supported by the University Board, interrogated, fired, and imprisoned instructors and staff” because of their perceived political beliefs. Most importantly, the PSC notes that any CUNY Policy on Expressive Conduct would be in violation of the University’s commitment to freedom of expression. The Board of Trustees affirmed in 1981 that the “University pledges diligently to safeguard the constitutional rights of freedom of expression, freedom of association and open intellectual inquiry of the faculty, staff and students of the University” (CUNY’s Manual of General Policy Section 2.17, http://policy.cuny.edu/manual_of_general_policy).

Fortunately, at a public meeting with students on 17 January 2014, Vice Chancellor for Legal Affairs, CUNY General Counsel, and the author of the Expressive Activities policy Frederick P. Schaffer asserted regarding the Expressive Activities Policy that CUNY will “either produce another draft, or not, if there’s a strong consensus that we shouldn’t have a policy along these lines.” We encourage you to make your views known to Vice Chancellor Schaffer at his office (646-664-9200) or through email (ogc@cuny.edu); or to communicate directly with Interim Chancellor (and former Graduate Center President) Bill Kelly (646-664-9100, or chancellor@cuny.edu).

At this meeting, Vice Chancellor Schaffer also noted the varied campus policies governing “expressive activity” that are already in place, that this proposal would supplant. In more disturbing news, however, when discussing the background of the policy Schaffer noted that “it was actually a group of distinguished professors that asked to meet with” then-Chancellor Goldstein to express some concerns around the police and security brutality at the Baruch protests of November 2011. “One of the suggestions at that meeting was that there was a lack of transparency as to sort of what the rules were relating to protests and demonstrations around the university, and that it would be desirable to have a policy.” Either Schaffer has misinterpreted the intentions of these faculty to generate the policy’s extreme CUNY-wide restrictions on top of already-existing campus policies, or our distinguished faculty are a significant factor in the troubling and unnecessary measures this proposed policy now sets forth. Neither of these is a pleasant thought. We call on those distinguished professors from that meeting to reflect on Schaffer’s characterization of their role and to take a stance on the resultant Draft CUNY Policy on Expressive Conduct.

Interim Graduate Center President Chase Robinson expressed reservations about the CUNY Policy on Expressive Conduct at the 11 December 2013 Graduate Council meeting. Indeed, the upcoming agenda for Graduate Council (the academic governing body of The Graduate School and University Center) features a resolution in opposition to the CUNY Policy on Expressive Conduct that was brought from the floor at the December meeting.

While the mounting opposition is encouraging, especially in light of Vice Chancellor Schaffer’s clear indication that opposition to the proposal will be taken seriously, a cynic might wonder how this opposition could still be twisted to turn a fight against excessive policing in the academy on its head. When the content of academic work comes into conflict with the really existing political conditions of the academy, scholarly rigor (including the rigor of political dissent) must take priority, or the university will be entirely reduced to a tool for corporate or political interests. And then where will we stand with the public during budget season?

We would like to propose a New CUNY Policy on Expressive Conduct (let’s call it the 02/14/14 draft). It can just read:

“The City University of New York fully supports the free exchange of ideas and expression of all points of view for all members of the University community, including political dissent, as integral to the mission of the public university.”

We hope that students, staff, administrators, and the distinguished faculty will offer their support.

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2 comments on “This Article is Banned by the CUNY Policy on Expressive Conduct
  1. Why does The Advocate curtail my freedom of expression by making me identify myself with my name and email address in order to post a comment. As this article highlights, many people’s free speech is often curtailed solely because of their identity. Thus, they may want to be anonymous to avoid censoring or backlash.

    The Advocate could adopt a new policy, it can just read: “The Advocate fully supports the free exchange of ideas and expression of all points of view under whatever circumstances people choose to express their ideas and expression, including anonymously, as integral to its mission.”

  2. Quite an interesting discussion. I’d just read articles at The Intercept concerning the controversial protest of the IDF film at UC Irvine and the home visits to activists in Cleveland. We really must be vigilant in stantdng up for our civil liberties.

    I’m a retired community college professor, so issues of free speech, expression and assembly on campus are of special interest to me. Best of luck with efforts to keep the debate an open one.

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